MISC 13-478438

April 8, 2015

SANDS, J.

JUDGMENT

Plaintiff Susan C. Gallagher (Plaintiff) commenced this action against Defendants Falmouth Zoning Board of Appeals and its members in their official capacities (together, the ZBA) by filing an unverified complaint on July 3, 2013, by which she appealed, pursuant to G. L. c. 40A, §17, the ZBAs decision to uphold a determination of the Town of Falmouths (the Town) Building Commissioner (the Commissioner) that the two lots [Note 1] owned by Plaintiff had merged for zoning purposes. [Note 2]

The ZBA filed its motion for summary judgment on April 15, 2014, together with a supporting memorandum, a statement of material facts, and a record appendix, which contained affidavits (and documents annexed thereto) of Eladio Gore (the Commissioner), Olive Fitzpatrick (Assistant Zoning Enforcement Officer for the Town), Brian A. Currie (Falmouth Town Planner), Peter McConarty (Falmouth Town Engineer), and Patricia A. Harris, Esq. (counsel of record for the ZBA). In response, on April 22, 2014, Plaintiff filed a statement in which she claimed that multiple issues of material fact remained in dispute. Thereafter, the parties appeared for a status conference on May 6, 2014, on which date the court issued an order finding, inter alia, that it appeared that the parties dispute was over legal issues and that the parties should proceed with briefing on their dispositive motions.

On June 6, 2014, Plaintiff filed a conditional [Note 3] cross-motion for summaryjudgment, together with a memorandum in support of the cross-motion and in opposition to the ZBAs motion, a statement of material facts and response to the ZBAs statement of material facts, and a record appendix, which contained affidavits (and documents annexed thereto) of Plaintiff (the Gallagher Affidavit), Michael J Markoff, Esq. (Plaintiffs counsel of record), and Thomas Bunker (a professional land surveyor).

On June 23, 2014, the ZBA filed a motion to strike a portion of the Gallagher Affidavit, together with a reply brief on its motion for summary judgment, a response to Plaintiffs statement of material facts, and a supplementary record appendix, which contained second affidavits (and documents annexed thereto) of Eladio Gore (the Commissioner) and Patricia A. Harris, Esq. (counsel for the ZBA). On July 3, 2014, Plaintiff filed opposition to the ZBAs motion to strike, as well as a motion to strike a portion of the ZBAs reply brief and a motion to strike both affidavits of the Commissioner. On August 4, 2014, the ZBA filed opposition to Plaintiffs motions to strike. A hearing on all motions was held on August 7, 2014, at which point all motions (including the motions for summary judgment) were taken under advisement.

The court has issued a decision (the Decision) as of todays date. In accordance with the Decision, it is hereby:

ORDERED and ADJUDGED that the ZBAs motion to strike Paragraph 42 ofthe Gallagher Affidavit is ALLOWED; said paragraph is stricken from the summary judgment record; and,

ORDERED and ADJUDGED that Plaintiffs motion to strike the Commissioners affidavits is DENIED; and,

ORDERED and ADJUDGED that Plaintiffs motion to strike portions of the ZBAs reply brief on its motion for summary judgment is DENIED; and,

ORDERED and ADJUDGED that when the Carport Lot came to be held under common ownership by Plaintiff with the House Lot (an undersized, developed lot) in 2000 pursuant to the deed dated December 29, 2000 and recorded in the Barnstable County Registry of Deeds as Document No. 821558-1 (Certificate of Title No. 160345) (the 2000 Deed), the Carport Lot lost the grandfathering protection under G.L. c. 40A, §6 from the minimumlot size requirement of 40,000 square feet set forth in Section 240-67 of the Towns zoning bylaw (the Bylaw); and,

ORDERED and ADJUDGED that all the lots contained on the plan dated April 28, 1986 and entitled Subdivision Plan of Land in Falmouth (the Land Court Plan), which was prepared by Cape & Islands Survey Co., Inc. and filed on October 1, 1986 in connection with Land Court Registration Case 314 (Plan 314-25"), are (barring merger) eligible for Bylaw § 240-67, Footnote 7s (Note 7") grandfathering protection; and,

ORDERED and ADJUDGED that Note 7 is not an indulgent bylaw provision to protect lots from merger upon common ownership; and,

ORDERED and ADJUDGED that when the Carport Lot came to be held under common ownership by Plaintiff with the House Lot (an undersized, developed lot) in 2000 pursuant to the 2000 Deed, the Carport Lot lost its protection under Note 7 from the Bylaws minimum lot size requirement (of 40,000 square feet) set forth in Bylaw § 240-67; and,

ORDERED and ADJUDGED that Defendants' Motion for Summary Judgment is ALLOWED; and,

ORDERED and ADJUDGED that Plaintiffs Cross-Motion for Summary Judgment is DENIED; and,

ORDERED and ADJUDGED that Plaintiffs complaint and this case are DISMISSED, with prejudice.

By the court.

FOOTNOTES

[Note 1] Plaintiffs property (Locus) represents two lots, the first of which is defined as Lot 500 on the Land Court Plan and as Lot 496 on the Subdivision Plan (the House Lot"), and the second of which is defined as Lot 499 on the Land Court Plan and as Lot 495 on the Subdivision Plan (the Carport Lot"). The Carport Lot abuts the House Lot to the southeast. The street addresses of the House Lot and the Carport Lot are, respectively, 11 Green Cove Lane and 17 Green Cove Lane in East Falmouth, Massachusetts.

[Note 2] An Amended Complaint was filed on July 8, 2013. The ZBA appeared in this case through counsel on July 11, 2013, but it appears from the docket that the ZBA never filed a written answer.

[Note 3] Plaintiffs motion was conditional in the sense that Plaintiff contended that one issue in this case is [Plaintiff]s intent, which is a matter which should not be decided on a motion for summary judgment. However, if this Honorable Court disagrees and holds that [Plaintiff]s intent is not relevant, then [Plaintiff] requests that based on material facts not genuinely in dispute, this Honorable Court annulling [sic] the Decision and enter a judgment declaring that the parcel of land at issue in this case, known as Lot 499, is a buildable lot.